The Free Market Foundation (FMF) in a press release stated that it is concerned about Parliament shifting its legislative responsibility to the executive government. In response to a report on legislative performance by the Parliamentary Monitoring Group (PMG), the FMF believes it shows Parliament acquiescing to the executive substituting Parliament as law-maker and to giving it parliamentary rubber-stamps in recognition of its efforts. This contravention of the Rule of Law, the FMF notes, must cease if economic growth, fighting corruption, and protecting fundamental rights are to be considered national priorities.
The report by PMG looks at the legislative output and performance of Parliament in the period from January 2006 to December 2017. Its conclusions paint a worrying picture of the state of parliamentary democracy in South Africa, according to the FMF.
The report shows that 92% of all bills are introduced by the executive, whereas only 8% are introduced by Parliament itself through committees or individual members. Between 2006 and 2017, 445 bills were introduced by the executive government compared to only 21 bills by committees and 20 by individual members. While the executive does have the constitutional authority to introduce legislation, the FMF believes this state of affairs is unacceptable. Parliament is the law-maker and should not allow the executive to dominate law-making in this fashion.
The FMF and its Rule of Law Project has discovered that most pieces of legislation passed by Parliament were in some way deficient. This may be because, as the PMG report alludes to, the legislative process was rushed. Far more often (96% of the time, according to research by the Rule of Law Project’s Gary Moore), legislation falls foul of Rule of Law principles by being unclear or ambiguously worded, or by assigning powers that it cannot assign under the Constitution. This reality is apparently not recognised by Parliament, as the PMG report shows that the vast majority of bills introduced are eventually adopted. Parliament has been too generous in giving its stamp of approval to executive bills, cautions the FMF.
The PMG report also finds that the number of bills adopted are highest during election years. The implication, writes the FMF, being that law-making is seen as a tool to be used for electioneering rather than in service to the Rule of Law and the objects of the Constitution. Laws, fundamentally, are meant to address problems or ‘mischiefs’ which undermine the values and goals of the Constitution. The FMF believes that it cannot honestly be said that these mischiefs are only apparent when parliamentarians are running for re-election.
Law-making should be a qualitative and not a quantitative exercise. South Africans’ concern should be with the quality of law rather than how many laws come out of Parliament, a fact the report acknowledges.
Indeed, many new laws are a greater cause for concern than a dearth of them, according to the FMF. As Judge Gideon John Tucker said in 1866, “No man’s life, liberty or property are safe while the Legislature is in session.” This means, and as recent experience around expropriation without compensation, National Health Insurance, and other laws has shown, that a scarcity of new laws will mean that citizens’ life, liberty, and property are, indeed, safe.
A conclusion in the report that the FMF believes should be celebrated is the fact that Parliament itself – members and committees – is cautious and reserved when it comes to introducing new laws with which to burden our economy. If executive overzealousness can be reined in and Parliament can stop blindly adopting executive bills, the FMF believes South Africa may embark on a period of high economic growth and development as government assumes its rightful place as a referee and not an active participant in the personal and economic affairs of the people.